NEW YORK STATE
INSURANCE DEPARTMENT

REGULATION NO. 162
(11 NYCRR 262)

LEGAL SERVICES INSURANCE

        I, NEIL D. LEVIN, Superintendent of Insurance of the State of New York, pursuant to the authority granted by Sections 201, 301, 1113(a)(29), and 1116 and Article 23 of the Insurance Law and Chapter 65 of the Laws of 1998, do hereby promulgate a new Part 262 of Title 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York (Regulation 162), to take effect upon publication in the State Register. A new Part 262, entitled "Legal Services Insurance", is added to read as follows:

ALL MATERIAL NEW

Section 262.0 Preamble.

        (a) This Part implements, interprets, and clarifies Chapter 65 of the Laws of 1998 as it pertains to legal services insurance. This Part should be read in conjunction with new Part 261 of this Title (Regulation 161) which is being promulgated at the same time. The preamble of Part 261 (Section 261.0) more fully explains the background, legislative history and intent of Chapter 65.

        (b) Section 1116(a)(3), as amended effective April 1, 1999, provides that legal services insurance may not be written except (i) in conjunction with prepaid legal services plans as authorized in section 1116, or (ii) pursuant to a regulation promulgated by the superintendent permitting legal services insurance to be written as part of a policy of liability insurance covering related risks, provided that legal services for defense-only coverages for commercial or other business related lawsuits or arbitration proceedings commenced against the business entity that purchased the policy is not more than an incidental part of such liability insurance. Section 1116(a)(2), as amended, provides that a prepaid legal services plan may include legal services insurance as part of the plan, provided, however, that not more than an incidental amount of the premium with respect to such prepaid legal services plan shall be attributable to legal services for defense-only coverages for commercial or other business related lawsuits or arbitration proceedings commenced against the business entity that purchased the policy.

        (c) Legal services insurance is often thought of as being "legal defense insurance", or "defense-only coverage", particularly in connection with liability insurance. However, legal services insurance is a broader concept, and may encompass situations where coverage is provided for initiation of a proceeding. Examples include a suit alleging infringement of a patent right, or an appeal from a license denial by an administrative agency. This Part addresses various aspects of legal services insurance, which may not be provided except in accordance with the provisions of this Part.

        (d) Legal services insurance does not include defense-only coverage that is incident to a claim of legal liability if that claim could be covered under a liability insurance policy written in New York. In such a case, the defense is part of the liability insurance, and subject to the requirements of the Insurance Law applicable thereto. Chapter 65 did not intend to bifurcate the coverage available under a liability insurance policy by permitting separate defense-only coverage when, under New York law, the policy could afford coverage for the legal liability but the insurer chooses not to provide such coverage. Accordingly, legal services insurance may not provide defense-only coverage for a claim of legal liability that could be covered by a policy of liability insurance.

        (e) As noted, Chapter 65 permits legal services insurance to be written as part of a policy of liability insurance in connection with related risks. This means that the risk exposure under the legal services insurance must relate to the same kind of risk exposure that is covered under the liability provisions of the policy. For example, a medical malpractice policy may include legal services insurance coverage in regard to the medical malpractice exposure, but not for other kinds of liability exposure. Hence, the policy could provide coverage in an administrative proceeding involving the medical provider's medical license, but could not provide coverage in a motor vehicle proceeding. Additionally, "related risk" does not refer to risks of entities related to the insured.

        (f) This Part prohibits coverage in a criminal proceeding, except where the Legislature has expressly stated that the public policy of the state is to allow such coverage. The Legislature has made such a declaration in Business Corporation Law Section 726, Not-for-Profit Corporation Law Section 726, and Banking Law Section 7023 in regard to the indemnification of officers and directors of corporations. In light of the enactment of Chapter 65, this Part recognizes criminal proceeding coverage, but only in the context of such laws.

        (g) Section 1116(h), as amended, provides that the superintendent shall promulgate such regulations that are necessary to implement the provisions of section 1116. Furthermore, the superintendent is directed by Chapter 65 to promulgate such rules and regulations as are necessary to implement its provisions on or before April 1, 1999. Chapter 65 provides that the new paragraph 29 of section 1113(a) of the Insurance Law and various conforming amendments implementing new paragraph 29 shall take effect April 1, 1999 and shall expire and be deemed repealed on April 1, 2003. Section 1116(c), as amended, provides that contracts issued in connection with a prepaid legal services plan may be issued on a group basis subject to regulations promulgated by the superintendent. Chapter 65 also provides that the relevant provisions shall apply to all contracts executed on or before April 1, 2003 until the expiration of such contracts or until April 1, 2007, whichever shall occur first.

Section 262.1 Definitions.

        For purposes of this Part, the following definitions shall apply:

        (a) "Criminal proceeding" means a proceeding commenced in the supreme court, county court, a district court, a city court, a town court, a village court, the criminal court of the city of New York, or an equivalent tribunal in another jurisdiction, including the courts of the United States, in which it is alleged a person has violated any provision of the Penal Law or any other statute of this state or another jurisdiction, including statutes of the United States, that specifies a violation thereof is a misdemeanor, felony or other criminal act. Such term shall not include proceedings concerning traffic infractions, as that term is defined in Vehicle and Traffic Law Section 155.

        (b) "Issue" includes issue for delivery.

        (c) "Legal services insurance" has the meaning ascribed in Section 1113(a)(29) of the Insurance Law.

        (d) "Policy" means an insurance policy, including a contract issued in connection with a prepaid legal services plan.

        (e) "Prepaid legal services plan" has the meaning ascribed in Section 261.1(m) of Part 261 of this Title (Regulation 161).

        (f) "Related risk" means a risk exposure that is related to the kind of risk exposure covered under the liability insurance policy of which the legal services insurance is a part.

Section 262.2 Applicability; general requirements.

        (a) This Part shall apply to any policy that includes legal services insurance issued or delivered in this State, or issued or delivered by an authorized insurer on risks or operations in this State, on or after April 1, 1999.

        (b) No policy that includes legal services insurance may be issued or delivered except by an insurer authorized to write such insurance and as provided in this Part.

        (c) Notwithstanding any other provision of this Part, legal services insurance may be issued or delivered only:
        (1) As part of a prepaid legal services plan, provided, however, that not more than an incidental amount of the premium with respect to the plan shall be attributable to legal services for defense-only coverages for commercial or other business related lawsuits or arbitration proceedings commenced against the business entity that purchased the policy; or
        (2) As part of a policy of liability insurance covering related risks, provided, however, that legal services for defense-only coverages for commercial or other business related lawsuits or arbitration proceedings commenced against the business entity that purchased the policy is not more than an incidental part of such liability insurance.

        (d) No policy may provide coverage that would be against the public policy of this state.

Section 262.3 Coverage in an administrative proceeding or involving a non-pecuniary remedy or relief.

        (a) Subject to the provisions of subdivision (b) of this section, legal services insurance may provide coverage for the insured's costs of legal representation:
        (1) In an administrative proceeding or other non-judicial dispute resolution forum; or
        (2) In litigation where the remedies or relief sought are non-pecuniary in nature.

        (b)(1) The coverage shall not apply to claims involving entitlement to non-employment related benefits, provided either directly or indirectly, from any government, governmental agency or political subdivision pursuant to any entitlement program.
        (2) The policy shall not provide coverage for an insured that institutes or initiates the proceeding or litigation where the insured is:

(i) a public entity, as that term is defined in section 107(a)(51) of the Insurance Law;
(ii) a quasi-public entity specifically created by statute; or
(iii) a large commercial insured, as that term is defined in Section 71.1 of Part 71 of this Title (Regulation 107), except that, in regard to a large commercial insured, the policy may provide coverage for an appellate proceeding.

        (3) The policy shall not provide for the indemnification of any penalty or other similar monetary amount that the insured may become obligated for as the result of such proceeding.

Section 262.4 Permitted defense-only coverages involving claims of legal liability.

        (a) No policy may provide defense-only coverage for a legal liability of the insured if the legal liability may permissibly be covered under a policy of liability insurance in this state.

        (b) Legal services insurance may provide for the payment of defense-only costs in relation to a claim of legal liability where a liability insurance policy cannot provide coverage for the legal liability of the insured because the coverage is against public policy or otherwise not permitted under the Insurance Law, such as a claim relating to dishonest or fraudulent acts, intentional violation of statute, or the intentional gaining of profits to which the insured was not legally entitled.

Section 262.5 Defense of criminal proceedings.

        (a) No policy of legal services insurance may provide defense coverage in a criminal proceeding, except as provided in subdivision (b) of this section.

        (b)(1) For the purposes of this subdivision, a "corporation" shall mean a corporation subject to the provisions of Business Corporation Law Section 726, Not-for-Profit Corporation Law Section 726, or Banking Law Section 7023, or a corporation that, if it were a New York corporation, would be subject to one of said sections.
        (2) A directors and officers liability insurance policy that provides indemnification for the acts of an officer or director of a corporation, as such term is defined in paragraph (1) of this subdivision, may provide legal services insurance coverage in a criminal proceeding, to the extent permitted by the applicable corporate statute.

Section 262.6 Directors and officers insurance limitations.

A directors and officers liability insurance policy that provides coverage for the acts of an officer or director of a corporation, as such term is defined in paragraph (1) of Section 262.5(b) of this Part, shall not provide coverage where indemnification is not permitted pursuant to the Business Corporation Law, Not-for-Profit Corporation Law, Banking Law or other applicable corporate statute.

Section 262.7 Coverage trigger.

        (a) Coverage for legal services insurance may be provided only where the event that is the basis for the action occurs during the policy period, notwithstanding when the action is brought, except as provided in subdivision (b) of this section.

        (b) If legal service insurance is written as part of a liability insurance policy, and the policy may be written on a claims-made basis pursuant to Part 73 of this Title (Regulation 121), then the legal services insurance may be provided on a claims-made basis, in accordance with the provisions of that Part.

        (c) Coverage for legal services insurance shall continue until the matter is adjudicated or settled, except that:
        (1) coverage provided under subdivision (b) of section 262.4 of this Part may be provided only until either the final adjudication of the claim adverse to the insured or until the insured is found to have in fact committed the alleged wrongful act;
        (2) If legal service insurance is written as part of a liability insurance policy, and the policy provides that the limits of liability may be exhausted by defense costs, in accordance with the provisions of Part 71 of this Title (Regulation 107), then the legal services insurance coverage shall cease when the limits of liability are exhausted.

Section 262.8 Policy limits.

        (a) A policy providing legal services insurance may establish separate dollar limits for services provided under the coverage.

        (b) Legal services insurance that is written as part of a policy of liability insurance may not reduce the limits of liability under the liability insurance coverage except as permitted by the provisions of Part 71 of this Title (Regulation 107).

        (c) A policy providing legal services insurance may include a reasonable deductible for such services but when the coverage is written as part of a policy of liability insurance, the deductible shall be separate and apart from any deductible under any liability insurance policy of which it is part. To the extent that the legal services provided under the coverage relate to legal services for a claim under the liability coverage for which a deductible applies, then the services shall be applied to both deductibles.

Section 262.9 Minimum provisions for legal services insurance written as part of a legal services plan.

        (a) Legal services insurance that is written as part of a legal services plan shall comply with the provisions of Part 261 of this Title (Regulation 161).

        (b) An insurer may offer, as part of a legal services plan, types of legal services insurance coverage other than those specifically addressed by this Part, provided that the superintendent is satisfied that the criteria in Section 1116(b) of the Insurance Law have been met and that providing such coverage would not be against the public policy of this state.

Section 262.10 Minimum provisions for legal services insurance written as part of a policy of liability insurance.

        Legal services insurance that is written as part of a policy of liability insurance:

        (a) May be written on a group basis, only if the underlying liability insurance policy is written on a group basis in accordance with Part 153 of this Title (Regulation 135);

        (b) Shall be subject to the filing and approval requirements of Article 23 of the Insurance Law, and shall not qualify as a special risk coverage pursuant to Part 16 of this Title (Regulation 86);

        (c) Shall be subject to Section 3102 of the Insurance Law if the underlying liability insurance policy is subject to that section;

        (d) Shall be written on a "pay on behalf" basis, except for a policy of directors and officers insurance, which may be written on an "indemnification" basis; and

        (e) Shall provide that nothing in the policy shall be construed to prevent an insured from making a complaint to the appropriate Appellate Division or other body designated by the Appellate Division to investigate complaints in accordance with Judiciary Law Section 90, or to the appropriate disciplinary body in the state where the legal service is being provided.

Section 262.11 Attorney compensation.

        No insurer shall compensate an attorney on a capitated fee basis in connection with legal services insurance.

 

        I, Neil D. Levin, Superintendent of Insurance of the State of New York, do hereby certify that the foregoing is the new 11 NYCRR 262 (Regulation 162), promulgated by me on March 1, 2000, pursuant to the authority granted by Sections 201, 301, 1113(a)(29), and 1116, and Article 23 of the Insurance Law and Chapter 65 of the Laws of 1998, to take effect upon publication in the State Register.

        Pursuant to the provisions of the State Administrative Procedure Act, prior notice of the proposed amendment was published in the State Register on December 1, 1999. No other publication or prior notice is required by statute.
 

__________________________
Neil D. Levin
Superintendent of Insurance
 
 

By:_________________________
GREGORY V. SERIO
FIRST DEPUTY SUPERINTENDENT

Dated: March 1, 2000